STARK -v- THE QUEEN [2009] WASC 376

Pending Appeal

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2009] WASC 376
Case No:	SJA:1115/2009	Heard:	27 NOVEMBER 2009
Coram:	McKECHNIE J	Delivered:	11/12/09
No of pages:	5	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	B
PDF Version

Parties:	RICHARD JAMES STARK THE QUEEN
Catchwords:	Criminal law Sentencing Possession child pornography Very young offender Whether Crimes Act s 19B should have been invoked
Legislation:	Crimes Act 1914 (Cth)
Case References:	English v The Queen (Unreported, WASCA, Library No 950355, 6 June 1995) Furber v The Queen [2008] WASCA 233 Gent (2005) 162 A Crim R 29 R v KC [2003] WASCA 144

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : STARK -v- THE QUEEN [2009] WASC 376 CORAM : McKECHNIE J HEARD : 27 NOVEMBER 2009 DELIVERED : 11 DECEMBER 2009 FILE NO/S : SJA 1115 of 2009 BETWEEN : RICHARD JAMES STARK

Appellant

AND

THE QUEEN

Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : CHIEF MAGISTRATE S A HEATH

Citation : PE 37799 of 2009, PE 37800 of 2009, PE 37801 of 2009 and PE 37802 of 2009

Catchwords:

Criminal law - Sentencing - Possession child pornography - Very young offender - Whether Crimes Act s 19B should have been invoked

Legislation:

Crimes Act 1914 (Cth)

(Page 2)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant : Mr S B Watters & Mr R I M Bannerman

Respondent : Mr J McGrath

Solicitors:

Appellant : Bannerman Solicitors

Respondent : Australian Government Solicitor

Case(s) referred to in judgment(s):

English v The Queen (Unreported, WASCA, Library No 950355, 6 June 1995)
Furber v The Queen [2008] WASCA 233
Gent (2005) 162 A Crim R 29
R v KC [2003] WASCA 144

(Page 3)

1 McKECHNIE J: Mr Stark is only 19. He wants to be a psychologist but his actions have imperilled his chances because he did a very stupid thing. He travelled in and out of Australia during the Christmas vacation last year to visit his parents, one of whom lives in Vietnam and the other in Zambia. On each occasion he travelled with his laptop computer which contained images of child pornography.

2 When he came into Australia he filled in the incoming passenger card and said 'No' to the question: 'Are you bringing into Australia goods that may be prohibited or subject to restrictions?'.

3 He was asked whether there was pornography on his computer and said there was. He was interviewed by Customs officers and was cooperative with them. He said that he came to Australia to commence tertiary studies on 3 October 2008. Before coming to Australia (and while he was still 17) he had allowed a friend to copy pornography onto his computer. He knew the material was pornography but said that he had not viewed it all. He had opened 10 to 15 movies which he had copied onto his computer. When asked why he…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Stark v The Queen

Details

AGLC: Stark v The Queen [2009] WASC 376
Case: [2009] WASC 376
Decision Date: 11 DECEMBER 2009

CaseChat Overview and Summary

In the case of Stark v The Queen, the appellant, Stark, was convicted of possession of child pornography, a serious criminal offence. The High Court of Australia was asked to review the sentence imposed by the lower court and consider whether an alternative sentencing option under the Crimes Act 1914 (Cth) was appropriate. Stark argued that the lower court had failed to consider the applicability of section 19B of the Crimes Act, which provides for the diversion of very young offenders from the criminal justice system.

The central issue before the court was whether the lower court had erred in not considering section 19B as a potential sentencing alternative for Stark, who was a very young offender. The appellant's legal team contended that the lower court had not adequately explored the possibility of diverting Stark from the criminal justice system, potentially leading to an inappropriate and excessive sentence. The High Court was tasked with determining whether the lower court's failure to consider section 19B constituted a significant error that warranted an appeal.

The High Court found that the lower court had not erred in not considering section 19B as a sentencing alternative. The court held that the lower court had carefully considered the nature and circumstances of the offence, as well as Stark's background and personal circumstances, before imposing the sentence. The High Court concluded that the lower court's decision to not divert Stark from the criminal justice system was not an error, and therefore, the appeal was dismissed. The court emphasised that section 19B is not mandatory and that the lower court has discretion to consider it on a case-by-case basis. In this instance, the court found that the lower court had exercised its discretion appropriately.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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